New legal guidelines for influencers

Given the relevance that native advertising and influencers have acquired, the National Consumer Service (“SERNAC”) supplemented the Interpretative Circular on advertising and commercial practices of February 2022 (exempt resolution number 176), through circular interpretation on native advertising and influencers contained in the exempt resolution number 534 and published on July 20th 2022 (“Circular”), which came into force from the publication on the SERNAC website.

The Circular establishes the main guidelines, principles and good practices that are applicable to native advertising and Influencers, so that this type of advertising complies with the requirements of Law No. 19,496 on the Protection of the Rights of Consumers (“LPDC”). We can highlight the following:

I. Responsibility for defilement of the rules of the Consumer Law.

The civil responsibility in case of breaches of the LPDC in advertising terms falls on the advertising company, that is, on the one for whose benefit or interest the advertising is made, provided that there is some type of link between it and the person who makes the advertising.

The foregoing implies that the advertiser must require its agents to act within the limits of the LPDC, in addition to directly verifying that it complies with it.

Notwithstanding the foregoing, the Influencers will have civil and infringement liability when they are the ones who offer their own products or services, that is, in those cases that act as advertising providers.

II. Good practices

  1. Clear and prominent identification of the advertising content: the content that corresponds to advertising must be clearly distinguished from that which reflects their real and disinterested personal experiences, taking into account the relevance that their opinion may have for their followers.
  2. Clear information about the link with the advertiser: the connection with the advertiser must be clarified. Regarding the foregoing, it is not necessarily limited to that type of relationship in which the payment of a certain sum of money is involved: it can be a “personal, family, labor, commercial, strategic and/or financial relationship, in which the advertiser, for example, is paying for the advertising service, offering products and/or services (exchanges), discounts, benefits or some type of royalty.”
  3. Clear statement of the characteristics of the product: it must be truthful and specific, by virtue of the principle of veracity enshrined in the first paragraph of article 3 of the LPDC. Due to the foregoing, it is necessary that the advertising content transmitted be completely “true, sincere, responsible and transparent in relation to the information that is delivered about the product or service that is offered”.
  4. Honest and complete opinion about the product or service: when advertising a product or service, efforts should be made to deliver honest and complete information, especially when making reviews. Therefore, when the product or service was not pleasant for them, the experience should not be falsified.
  5. Advertising should not promote stereotypes: special focus on gender stereotypes.
  6. Verification of the veracity of objective statements: advertising agents must have background information that allows them to account for statements about the qualities or benefits of the products or services marketed, to avoid misleading consumers.
  7. Protection of advertising content aimed at children and adolescents: due to the global reach of native advertising, part of the recipients are children or adolescents, therefore, “advertising content must be especially protected, taking into account to the degree of maturity and development of the target audience of the message or advertising campaign”.

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